Standing Committee F

[Mr. David Amess in the Chair]

Employment Bill

Clause 22 - Employment Tribunals

Amendment moved [this day]: No. 16, in page 32, line 27, at end add— 
''(3) After that section there is inserted— 
 '13B Charges for Applications to Employment Tribunals
Employment Tribunal procedure regulations may include provision for authorising an employment tribunal to charge a fee payable by an applicant upon lodging an application with the tribunal, in such amount as the regulations shall provide.' ''—[Mr. Hammond.]

Philip Hammond: Welcome to the Chair, Mr. Amess. It is a pleasure to serve under you in a Committee.
 We had begun to debate amendment No. 16, which would insert a proposal to charge employment tribunal applicants. The Government originally floated the provision as a key part of tribunal reform, but subsequently dropped it. Rather than waiting to view all the responses to their proposals—the closing date for responses was 8 October—they panicked. In early September, the Secretary of State and the Prime Minister were due to address the Trades Union Congress annual meeting. The Prime Minister avoided that event due to the tragic events of 11 September, but the Secretary of State did not. At that point, the Government coincidentally announced that, in response to consultation, they were withdrawing the proposal to charge. They did not wait for the full completion of the consultative procedure. 
 Members of the Committee can draw their own conclusions about the pressures that may have been placed on Government to arrive at that decision. It is not true, as the parliamentary Labour party brief says—I am not a subscriber to the PLP but it is often a useful source of information—

Alan Johnson: Just because we have lost someone, that does not mean we want to swap.

Philip Hammond: I am flattered that the Minister would be prepared to swap me for the hon. Member for Shrewsbury and Atcham (Mr. Marsden), but I am not sure that I would accept that transaction.
 The PLP brief poses a series of questions and answers—a simple form that Government Back Benchers can understand. It asks: 
''Q—Why did the Government drop charging on employment tribunals from the Bill?
A—There was a strong consensus against charging from both employer and employee representatives during the consultation period.''
 The Government did not complete the consultation process before they dropped charging. There was not a ''strong consensus'' against charging among employer and employee representatives. Employer representatives welcomed the original Government announcement that they would introduce charging. That seemed sensible, and the Minister said: 
''Charging a modest amount would bring a faster and more customer-focused service and also raise funding for improvements in the tribunal and conciliation process. At least a quarter of all tribunal applications which come from those who are on benefits or in genuine need will be exempt from any charges. These people will still have access to justice.''
 The decision to drop charging was somewhat surprising, and produced a fair degree of ridicule, even in the generally pro-Government press. On 5 September, The Guardian said: 
''Tony Blair has sanctioned his first political retreat since the election by bowing to union opposition and dropping plans to impose charges on applicants to employment tribunals . . . The climbdown is understood to have been made by the industry secretary, Patricia Hewitt, with the prime minister's personal agreement in the past few days.''
 It goes on rather enlighteningly to say: 
''The issue was threatening to engulf Mr. Blair and Ms Hewitt who are due to speak at the TUC conference in Brighton next week.''
 The Government were willing to back down on a proposal that they had strongly defended and previously had said was predicted to save British business as much as £70 million in litigation costs. They were prepared to do that before hearing everything that people had to say during the consultation process. That is an additional stealth tax of £70 million imposed on British business by the Government. 
 The amendment seeks to put back in the Bill not a requirement to introduce charging, but a power for the Minister to do so if his original instincts were right and if the other measures in the Bill, largely welcome though they are, do not manage to slow down the seemingly inexorable rise in tribunal applications. What targets has the Minister set on that? If he does not meet them he will need additional means at his disposal. The amendment offers him just such an additional means. It is not a silly or extreme idea, but one that the Minister himself has strongly defended and which the Government originally put forward as a key part of their proposals. 
 The Opposition suspect that the proposal to introduce charging has not been dropped because of any flaw in the logic or because it is unworkable, but simply because of pressure from one interest group and because it provided the potential for serious embarrassment to the Prime Minister at a time when he wanted to generate harmonious relations with the TUC and hoped to have a successful appearance at the TUC conference. That is not the best way of delivering good legislation and good government. I hope that the Minister will have the good grace to tell us that he does not have an objection in principle to charging and that he would welcome the inclusion of this provision in the Bill, so that if all else fails—I know that it is not now his first choice—he has this additional weapon to draw upon in his armoury.

Rob Marris: Where in the Confederation of British Industry brief on the Bill is it suggested that charging would be a good idea?

Philip Hammond: I hope that the hon. Gentleman will not fall into the trap of thinking that the CBI is the only organisation representing business. Let me remind him again of what I quoted from the PLP brief. It said:
''There was a strong consensus against charging from both employer and employee representatives''.
 I have not spoken to any employer representative who felt strongly that the charging scheme was a bad idea. I concede that the CBI is fairly neutral on the issue of charging. Other employer representative organisations, such as the Federation of Small Businesses and the Engineering Employers Federation, which the hon. Gentleman himself cited this morning, are in favour of charging. They both strongly support the Government's original proposals and are deeply disappointed that the Minister retreated from them. 
 This is an unfavourable move in what is a delicately balanced package of measures that meet the agendas of both trades unions and employees, and employers. The symmetry and balance has been disrupted by the U-turn, as the BBC News website described it. 
 I am conscious of the need to make serious progress in this afternoon's sitting, so I will not make further remarks on amendment No. 16 until I have heard what the Minister and other Committee members have to say.

George Osborne: Thank you for calling me, Mr. Amess, and I am delighted to serve under your chairmanship.
 My hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) spoke well on the extraordinary Government U-turn that we have seen in the past few weeks. I do not think that he mentioned that the charging regime was one of only two provisions that were highlighted in the press notice that accompanied the ''Routes to Resolution'' consultation paper. The other was the measure for companies to have an in-house dispute resolution procedure, which the Committee will discuss later. As my hon. Friend reminded the Committee, the Minister, so proud was he of the charging regime, said that the regime would provide a faster and more customer-focused service. That begs the question: is he now introducing a system that is slower and less customer focused? 
 We must ask ourselves why the regime is not in the Bill. As my hon. Friend suggested, there are all sorts of tell-tale signs. The charging regime generated huge opposition from the trade unions and, as my hon. Friend pointed out, it was an extraordinary coincidence that the measure was dropped just a few days before the Secretary of State and the Prime Minister were to go to the TUC conference. For me, that was a coincidence too far. Some 49 Labour Members signed an early-day motion opposing the charging regime. I must confess that I have not done my homework, and I am not clear whether Labour Committee members were among them.

Philip Hammond: I am happy to enlighten my hon. Friend and tell him that six Committee members signed that early-day motion.

George Osborne: I am looking forward to those six Members explaining why they were so hostile to the charging regime and how they successfully brought pressure to bear on the Government. The fact is that the move is an embarrassing U-turn and a typical example of new Labour talking tough but backing down when the pressure comes. Will the Minister explain how a tribunal system without the charging regime will not be slower and less customer focused than one with the regime?

Norman Lamb: Thank you, Mr. Amess, and welcome.
 The Liberal Democrats do not support the amendment. It would deter applicants, particularly those who are left in difficult circumstances following dismissal. I appreciate that the amendment would give the Minister only the discretion to introduce a charging system, but such a move would disadvantage those applicants who are in the most difficult financial circumstances. I find it interesting that the Conservative party wants to go beyond what the CBI sees as important in the Bill. Charging was not even mentioned in the briefing that I had with the CBI. I appreciate that it is not the only employers' organisation that has an interest in the matter, but I have not been overwhelmed by demands from other organisations to introduce the charging mechanism. The Bill already includes measures to deter tribunal applications by introducing procedures for in-house resolution of disputes, which is a valuable advance and should be welcomed by all. However, it would be a retrograde step to impose a charge and impede people who have not been able to resolve their dispute internally with their employer, and we would not support it.

Rob Marris: I welcome this part of the Bill, or rather the absence of the measure, as I should say to the hon. Member for Runnymede and Weybridge. The Bill's aim is to prevent premature applications to employment tribunals and to encourage employees to sort out their differences with their employers in the workplace. As a society, we should not try to put a price on access to justice in a regime where, except for the famous 242 cases about which we keep hearing, costs are not recoverable. That differentiates employment tribunals from, say, the civil courts. We should therefore try to encourage resolution of disputes at the workplace, which is the aim of schedule 2. However, if such a resolution is not possible, tribunal applications should be facilitated.
 We keep hearing about the inexorable rise of tribunal applications, which is happening for the reasons that I outlined on Second Reading. However, we must also bear in mind that in the past few years we have had one of the lowest strike rates in the European Union. That is partly because disputes are resolved in different arenas, whether in the workplace or at a tribunal.

Philip Hammond: I understand the hon. Gentleman's view. I presume that he held it before and would have argued against the Government had they kept the provision for charging. My amendment seeks to tease from the Minister what happened between the publication of the consultation document and his strong statements in favour of a charging regime, and 5 September. A half completed consultation process is not an appropriate basis on which to withdraw a proposal that Ministers so publicly and strongly supported.

Rob Marris: Happily, I do not face the dilemma of what I would do if the provision were in the Bill, and I am convinced that it will not be. It would be a retrograde step. The Government consulted—[Interruption.] If the hon. Member for Runnymede and Weybridge will let me finish, I was going to say that perhaps the consultation process should have been finished. However, when the overwhelming response to that process is that it is a bad idea to introduce charging, as it would be a tax on access to justice, I have no difficulty with the Government withdrawing the provision. The amendment would reintroduce that power to the Bill, which is a bad idea, because Governments of whatever colour are liable to use such powers. It would lead to more problems in the workplace and could lead to more strikes, and that would be a retrograde step.

Mark Prisk: I am pleased to serve under your chairmanship this afternoon, Mr. Amess.
 The hon. Member for Wolverhampton, South-West (Rob Marris) is overstating the case when he says that the provision would be a tax on access to justice. Even if the charge were to be implemented, it would only be a small amount of £10, £20 or £30. Certainly, those sorts of figures were discussed in the past. During the earlier consultation, the CBI welcomed them in its press release, which stated that the charges were ''not unreasonable'' and were 
''already quite normal in other areas of the court system.''
 It is incorrect to say that the charges are unprecedented. 
 Hon. Members would understandably be concerned if the poorest people were prohibited from access to justice, but as the Minister pointed out earlier in the year: 
''At least a quarter of all tribunal applications which come from those who are on benefits or in genuine need will be exempt from any charges. These people will still have access to justice.''
 I do not believe that the original intention was to tax that access to justice. The question that taxes Opposition Members is why it was dropped prematurely.

Alan Johnson: It is a delight to serve under your chairmanship again, Mr. Amess.
 The Government oppose the amendment. I note that it contains the word ''may'' instead of ''shall''. I understand the reason for that, but it is ironic, given other amendments that we have considered. We proposed a charge in our consultation document, to which there was a considerable reaction—more than 200 well considered responses. The weight of opinion, including that of employers' organisations, was overwhelmingly against the idea. 
 It was argued that an application fee would be seen as a tax on justice; it would bite not on applicants with weak cases, but on those who were short of money; and it would deter settlements shortly before the hearing, which are common and might even lead to employers defending more cases rather than less. That response was made to a consultation document in May 1988, when a previous Government suggested charging for employment tribunals, so they dropped the idea. We have been round this course before.

George Osborne: Does the Minister agree that charging a modest amount would create a faster and more customer-focused service, as he previously said?

Alan Johnson: No. I am pointing out what a previous Government concluded, following consultation on the same issue at the end of the 1980s. They did not raise the issue of charging again. That Government believed that charging would improve the service at employment tribunals, so they suggested it in a consultation document. However, when they considered the response, they dropped the idea, which was at the height of Thatcherism. We are doing exactly the same.
 The hon. Member for Runnymede and Weybridge made a curious argument. The record will show that he said that all employers' organisations welcomed charging. Five minutes later, however, he said that the CBI was neutral on the issue. We are now the party of business and employees; the Conservative party seems to be the party of the Institute of Directors. The CBI was neutral because it sees admissibility as a far bigger issue. The need for grievance and discipline procedures in the workplace is also relevant. 
 The idea of charging was never about reducing applications to employment tribunals; it would have provided a funding stream, as we made clear at the time. Many employers objected to the arrangement because of the fee. In the absence of a figure, we slotted into the regulatory impact assessment at the back of the consultation document the figure of £50 to get into the system, and the applicant and respondent would have paid £150 if they came out of the conciliation process and went to a full-blown employment tribunal. Many employers objected to the second part. 
 The Newspaper Society, which represents the regional newspaper industry, said: 
''The reduction of misconceived applications is paramount but not at the expense of employees with justified claims but little ability to pay.''

Philip Hammond: No disrespect to the Newspaper Society, but the Minister seems to be dredging the bottom of the barrel to find an employers' organisation that spoke out in that way.
 For the record, all the employers' organisations to which I spoke were favourable to the idea of charging. Indeed, the CBI was favourable to the idea when it was the Government's pet scheme. When they decided not to go with the charging regime, the CBI adopted a more neutral tone, but there is no inconsistency. All employers' organisations to which I spoke were, without exception, favourable to charging and certainly when that was the Government's favoured scheme.

Alan Johnson: Governments go through consultation processes and change their minds. The Conservative Government did precisely that on the same issue. Furthermore, not all employers' organisations supported the measure.

Philip Hammond: The Conservative Government, unlike this Government, completed their consultation process in 1988 before they made a decision.

Alan Johnson: The consultation has been completed.

Philip Hammond: It is not finished.

Alan Johnson: The hon. Gentleman has a touching faith in the speculation of The Guardian newspaper. We announced the outcome of our consultation in exactly the same way that the previous Government did in 1988.
 The hon. Member for Tatton (Mr. Osborne) asks why we changed our mind. There were several reasons, one of which was the overwhelming response from those organisations that had the most experience in dealing with applicants. They said that there would be a significant deterrent effect on low-paid workers, particularly if the monetary value of the claim was small. Citizens advice bureaux strongly opposed the proposal. Even with the discretionary exemptions that were proposed in ''Routes to Resolution'', the proposed fees would inevitably deter would-be applicants with well-founded cases. 
 As the hon. Member for Hertford and Stortford (Mr. Prisk) mentioned, we said that there would be exemptions. We wished to mirror the civil courts; it would be strange to introduce a system for employment tribunals that was different from that in the civil courts. On further deliberation, we realised that the exemptions that apply in the civil courts are much more complex. They are based on calculations of disposable income that take into account payments to the Child Support Agency, school fees and so on. 
 We would have had to allow full or partial exemptions to a much greater degree than expected—about 60 per cent.—and we would have had to set up a bureaucracy to collect fees that previously had not been charged. As that would have cost almost as much as the proceeds from a modest fee, we would have had to charge a completely prohibitive fee. 
 People who have the greatest experience of dealing with applicants presented strong moral arguments, and there was a practical problem with respect to the point that the hon. Member for Hereford and Stortford rightly raised.

Judy Mallaber: Does my hon. Friend share my bewilderment that the hon. Members for Runnymede and Weybridge and for Tatton made absolutely no mention of the problems that face a vulnerable individual who is experiencing difficulties at work? Furthermore, they seem to be less interested in the practical issues arising from the consultation process and in allowing the Minister to listen to valid arguments than in point scoring.

Alan Johnson: I agree with my hon. Friend. However, to be fair, the hon. Member for Hereford and Stortford raised the point about people on low incomes.

Mark Prisk: Hertford.

Alan Johnson: I am sorry. The hon. Gentleman is the Member for Hertford and Stortford. The lighting is bad, and I do not have my glasses.
 The important consideration is about people on low incomes who have genuine claims that they wish to take to an employment tribunal. We decided, as did the previous Conservative Government, that fees would be a tax on justice. 
 Would a charge deter applicants from taking cases forward? It probably would not deter vexatious cases, which are the ones that we are concerned about. However, it would affect applicants with genuine cases who thought that the expenditure was too great. After consultation and reflection, we decided not to take that route. People who understand employment tribunals argue that fees do not deter vexatious cases but that other measures should be pursued, such as admissibility. Therefore, the amendment does not deserve support. 
 The hon. Member for Runnymede and Weybridge asked for our estimate of the reduced number of cases; the Bill will reduce the number of cases by between 30,000 and 40,000 a year, the vast majority of which will come as a result of having workplace procedures. In 62 per cent. of all employment tribunal cases not a word is exchanged between the respondent and the applicant until they get to an employment tribunal. 
 The previous Government concluded that charging was not the solution, and we agree. We do not believe in introducing a measure in this way, giving us a power on the Committee Corridor to implement something so important. Of course, Governments can never say never about what may happen in future, but if we are to return to the issue, as the previous Government rightly did, there should be a full debate on legislation, not a discussion on regulations. I urge the Committee to oppose the amendment.

Philip Hammond: The Minister has advanced some fascinating arguments and given an eloquent exposition of the case for primary legislation, which Opposition Members broadly support. The Minister talked about what the previous Government did, but he was actually referring to what the previous Government but two did in 1988, when the world was a different, and in some respects, happier place. We cannot draw too many conclusions from what happened 13 or 14 years ago.
 The Minister's response to the amendment was a well-argued, coherent argument against charging. However, he did not explain why he and his colleagues whole-heartedly supported charging when they published their consultation document on 20 July. With the exception of citing responses to the consultation, the Minister did not give a coherent reason for changing his position between 20 July and 5 September. He said that the Government reached a conclusion after the consultation, but they did not. In case there is any ambiguity—the Minister referred to it earlier—let us be clear about the dates. I invite the Minister to shoot me down if I am wrong. 
 On 20 July, the Department of Trade and Industry published ''Routes to Resolution'' and invited responses, the closing date for which was 8 October. It is conventional to wait until a consultation exercise is complete and the responses have been received before drawing conclusions. On 5 September, the Government announced—or leaked—that they had abandoned the proposed charging regime. They did so not because of a change of heart but because of pressure that had been applied to them. I quote from The Guardian on Wednesday 5 September, which stated: 
''The Government is already facing a revolt over the future of public services, and Ministers felt they could not continue fighting wars on so many different fronts. Furious trade union sponsored Labour MPs were also promising to inflict a damaging defeat over the fees in the Commons.''
 I suspect that they include members of this Committee who signed early-day motion. 260, without recording their interest in doing so. The Government abandoned their favoured charging scheme not because of the results of their consultation, which had not been completed at that stage, or for a principle, or moral reason, as the Minister would have us believe, but because the squeeze was put on them by the trade union movement, by trade union-sponsored Labour MPs. The Government abandoned a scheme that the Department decided was workable and appropriate simply because, in the grand scheme of things, with a punch-up going on with the trade unions about public services, the Prime Minister did not want a war on two fronts, having no doubt been attentive to history. 
 The Minister did not advance any logical or coherent argument against having the power in the Bill. He could not say, ''I object to it because it is a morally offensive power for a Government to have,'' because he proposed to give the Secretary of State such a power, and spoke eloquently in support of it a few months ago. He did not tell the Committee what he proposes to do if the estimated reduction in case load does not occur. He has seen the briefing and he will not be surprised that some legal experts think the Bill will not reduce tribunal case loads, as the Government hope. 
 The Minister did not tell the Committee how he will replace the revenue stream that he hoped to raise from a charge in order to strengthen the tribunal system and make it work better by being better resourced. The Minister failed to respond in two respects. First, he failed satisfactorily to explain the Government's change of heart, although he worked valiantly within the constraints in which he finds himself. It is apparent that an old-fashioned, strong arm on the Government from the union lobby forced them to drop a measure that they had proposed and that the employers' side of industry found broadly acceptable. 
 Secondly, the Minister did not say why it would not be appropriate to accept the amendment, if only as a reserve power if his other proposals fail to deliver the result that he anticipates. 
 I am not persuaded by the Minister's argument and unless he has anything else to say, I shall urge my hon. Friends to vote for the amendment.

Alan Johnson: The hon. Gentleman is not listening. He made no reference to the point about exemption. He quoted newspaper articles—there were interesting pieces in the Financial Times and in The Guardian—but not Government announcements.
 The hon. Gentleman asked how we will replace the revenue stream, but I have to ask what revenue stream he means. If we are mirroring the civil courts, and no one suggested that it would be wrong to do so in relation to exemptions, there is no revenue stream. By the time a bureaucracy is set up to deal with partial and complete exemptions the money coming in with 60 per cent. exemptions just does not provide a revenue stream. The hon. Gentleman did not address that practical matter.

Philip Hammond: Will the Minister give way?

Alan Johnson: No, I will not give way because the hon. Gentleman is going to press the amendment to a vote. He asked whether it was worth putting his proposal on the statute book in case other measures fail, but if they did, it would fail too. We oppose the amendment because charging will not deter applications, and certainly will not deter vexatious applications, for the deterrence of which we have other measures. If it would deter genuine applications, it is wrong in principle and we should not agree to it. If it is intended to provide a funding stream—it would not, for the reasons that I have set out—what would the mechanism be?
 We shall later debate funding for the Advisory, Conciliation and Arbitration Service later, and the Lord Chancellor's Department is conducting a review and the Department of Trade Industry is taking an initiative to consider appropriate funding for the employment tribunal system. The amendment would not press any buttons that would bring about the desired outcomes. If the hon. Gentleman forces a vote on the amendment, I urge the Committee to oppose it.

Philip Hammond: I am somewhat puzzled, as the Minister may be when he reads the report of our debate. He asks, ''What revenue stream?'' I was referring to the revenue stream to which he had referred a few minutes ago. He said that the purpose of proposing charges was not to deter applications but to generate a revenue stream. Those were the Minister's own words in support of the Government's original proposal to include a charging regime.

George Osborne: Is the hon. Gentleman aware that the press notice that announced the publication of the consultation document listed as one of the key proposals
''a new modest charging regime for use of the employment tribunal system to reduce the cost burden on the taxpayer''?
 Presumably the Government calculated a cost burden on the taxpayer, which would be reduced.

Philip Hammond: The Minister seems to vary his argument. When I ask about applications, he says that the original idea was to generate a revenue stream, not to deter applications. Five minutes later, when I ask about a replacement revenue stream, he tells me that charging was not intended to generate a revenue stream.

Alan Johnson: The consultation period began on a basis of 25 per cent. exemptions. We calculated that if we mirrored the civil courts, around 25 per cent. of applications would be exempt. During the consultation period, paying closer attention to how a complicated civil courts procedure would work in practice—[Interruption.] The whole purpose of consultation is to consider such issues in detail. That produced a system of 60 per cent. exemptions and a bureaucracy to deal with partial exemptions as well. We dealt with consultation in exactly the same way that the previous Government dealt with it on the same issue, and came to the same conclusion.

Philip Hammond: I think that we are being invited to believe that in response to the consultation document, someone sent the Government a calculator—or an abacus—and they did their sums again and found out that they got them wrong. The Minister mentioned those who would be exempt from charges. He addressed that point when he said that at least a quarter of all tribunal applications that come from those who are on benefits or in genuine need will be exempt from any charges, and that those people will still have access to justice.
 The Minister asked about the announcement. It is slightly disingenuous of him to deny with a straight face that there was a Government announcement, and to say that, a few days before the TUC conference, The Guardian merely reported well-placed sources. The Minister is not denying that by 5 September, a decision to abandon charging had been taken. The fact that an announcement was not made says more about how the Government operate than about the decisions. 
 John Edmonds, the general secretary of the General, Municipal, Boilermakers and Allied Trades Union, said on 5 September: 
''If this U-turn is true it is something we would warmly welcome. But again you have to question why the government is using smoke and mirrors. If they are going to drop the idea of charging why on earth don't they have the courage to come out and say it?''
 Even now, the Minister seeks to obfuscate the point at which the decision was taken and to hide behind the fact that the method of announcement—as is so often the case—was a leak to the friendly media, rather than an announcement to Parliament. 
Rob Marris rose—

Philip Hammond: If the hon. Gentleman will forgive me, I am approaching my conclusion.
 We will not find common ground, and I will have to press the matter to a Division. I urge my hon. Friends to support the amendment. It would give the Government additional powers, providing an additional weapon. Otherwise, the Bill's good objectives will not achieved because of a substantive U-turn by the Government in the face of pressure from their trade union paymasters. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 12.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

Philip Hammond: My notes, rather optimistically, start: ''The clause, as amended''. As it turns out, the clause, as unamended, together with what the Minister has said, set out the Government's intentions. I have certainly learned quite a bit about precisely how the Government intend to take matters forward but I do not know whether anything will happen that will make a real difference.
 We have heard from various hon. Members and from the Minister about the award of costs. In the past year, around 250 awards of costs were made from 218,000 cases. Unless the Government intend, through the regulations, to ensure that the measures in clause 22 have considerably wider bite than their predecessor measures in section 13 of the Employment Tribunals Act 1996, they will have no meaningful impact on the system. 
 Two important are principles at stake. First, access to justice must not be denied to people. I recognise and respect the points that various hon. Members have made, particularly in relation to the charging regime and the fear of being subject to a costs order. That must be balanced by the principle of responsibility: no one can enjoy access to the justice system without responsibility for their own conduct. The system cannot be a free ticket lottery that one enters with the hope of a big win and no downside. Fear that that concept is creeping into the national psyche probably lies at the heart of some of the Minister's concerns about the way that the system is working. The no win, no fee culture in which if anything happens one can always get compensation from someone is generally unhelpful and unproductive. I am sure that the Minister would seek to discourage that. 
 We shall discuss later amendments on that matter, but the point is germane to clause 22. Will the introduction of the conciliation process in clause 24 change the geometry and create a set of different ground rules by changing the concept of what is reasonable behaviour when a case comes out of the conciliation process? Will the advice of a conciliation officer be critical in determining whether behaviour is subsequently deemed to be reasonable or unreasonable? Whether the clause will work and whether it will be widely seen as reasonable and effective will depend largely on that question and how the regulations deal with it. Before we agree that the clause stand part of the Bill, will the Minister tell the Committee what percentage of cases he anticipates will receive an award of costs? Will the percentage go up, or will it stay the same? What amounts of money are likely to be involved? What assumption have the Government made in their regulatory impact assessment? Without those figures, it is difficult to understand what the Government expect to happen once the regulations are published. 
 I have another question for the Minister, which I have not framed in an amendment but would like to float past him. I do not claim authorship: an external group that has provided me with some briefing suggested it. Would it be sensible to require tribunals to give their reasons for awarding or not awarding costs in individual cases, so that minds would focus on the process required to decide whether a particular case merited an award of costs? Does the Minister expect such an award against a representative, or disallowance of a representative's costs, to be a rare or regular occurrence? What percentage of cases has the Government's impact assessment assumed will be subject to such a procedure? How often does the Minister expect compensation for preparation time to be awarded? I ask the Minister those questions now, because once we see the regulations, we will want to put them in the context of what he has told us that he expects to achieve. 
 What will be the likely impact of the Leggatt review of tribunal procedure on the tribunal system in general, and on the legal aspects of the assessment and award of costs in particular? Does he anticipate that we will have to revisit the issue, and is it possible that we will have to unravel the procedures once the conclusions of the Leggatt review have been fully digested? 
 Will the Minister tell us more about the financing of the tribunal system? What subvention from the taxpayer is expected on commencement, and can we expect additional funding to support the tribunal and conciliation services? 
 It is important to see clause 22 in context, because it is only part of a system that has good and bad points for all participants. We undermine that balance at our peril because, although there is substantial consensus on the clause, that consensus critically depends on the balance being maintained. In my discussions with employer representatives and organisations, it was not generally appreciated, as the Minister said before lunch, that awards of costs or expenses under the new regime would be limited to the few cases deemed vexatious or unreasonable. Unless the regulations broaden the concept of what is unreasonable to take account of the conciliation process so that costs are awardable in significantly more cases, many people who supported the proposals will find that they have misunderstood the Government's intentions. 
 During our break this afternoon, I re-read some of the briefing material that I received from employer organisations. It was apparent that they welcomed some of the new provisions, but only because they anticipated broader use of the power to award costs than the Minister has described today. Already, what appeared to be consensus on the provisions is being eroded.

Alan Johnson: We have had a good debate. The misunderstanding between the hon. Member for Runnymede and Weybridge and me has not extended to the organisations that he mentioned. The Government have been clear that cost awards will be made on the same basis as they are now. We have not attempted to interfere with that, and it would have been difficult to do so with such wide-ranging cost awards. The judiciary said that the term ''frivolous behaviour'' should be replaced by ''misconceived'', and we did that in July. We increased the penalty that an employment tribunal can impose, from £500 to £10,000, and the deposit that must be put down. All that was aimed at preventing vexatious, misconceived cases.

Philip Hammond: I understand the Minister's comments, but in referring to the power to award costs, the Engineering Employers Federation, which is much beloved by the hon. Member for Wolverhampton, South-West, said:
''For example, increased powers to award costs may not be exercised . . . How will the Government persuade the Employment Tribunals to take a more active role and use their more extensive powers?''
 The Minister is telling us that there will not be more extensive powers or an increased power to award costs. Clearly, that employers' organisation based its response to the Bill on a misconception of the Government's proposals.

Alan Johnson: The EEF is a marvellous organisation. I had dinner with its representatives only the other night, and we discussed all the issues. It accepted, as the Committee has so far with the amendments that we have debated, that it is right to make cost awards against representatives who act unreasonably and that they should not be able to take the money from their clients. We have accepted that people should be awarded costs for preparation of a case, even if they have not taken legal representation into an employment tribunal.
 Those are sensible measures that, with the increase in the deposit and the £10,000 penalty limit, will deter weak and vexatious cases. We have no desire to extend the definition. Indeed, during our consultation, no one argued that we should, for the reasons given by the hon. Member for Runnymede and Weybridge. He is a decent man—[Hon. Members: ''Hear, hear.''] That's about as good as it gets. He said, rightly, that we must strike a balance. The potential costs should not deter people who believe that they have a justified case or grievance from going to employment tribunals. 
 There are many other measures. We are talking about striking out weak cases at pre-hearings, which we shall discuss under other aspects of the Bill. Taken together, all those are sound, sensible and practical ways to proceed. 
 The hon. Gentleman asks what difference they will make. That is difficult to calculate. We say in the regulatory impact assessment that the measures in clause 22 will probably prevent up to 500 such cases from being brought. That is quite significant compared with the number of vexatious cases. The clause has not been designed to make employers feel that employees with relevant and arguable cases will not bother bringing them because they are so concerned about the cost award that may be made against them. We are not in that ball game, as we have emphasised repeatedly. 
 Hon. Members have raised interesting and helpful points about the provisions, and I am grateful for their contributions. When we draw up regulations, we shall see what can be learned from the experience of civil courts, where such procedures exist. I hope that Members are reassured that neither the intention nor the effect of the clause is to deter workers from using the employment tribunals system to seek redress if their rights have been infringed. 
 The Government have a responsibility to ensure that rights are enforceable and that the justice system is accessible and fair to all parties. We must minimise the potential for abuse and ensure that wronged parties are properly compensated for their loss if the system has been abused. That last point is particularly relevant to the clause At the same time, we have a responsibility to the taxpayer to provide an efficient employment tribunals system. Along with other measures, the clause will help to achieve that end. 
 The hon. Gentleman asked about funding mechanisms. They are an important element of the matters being considered by the employment tribunal system taskforce under the chairmanship of Janet Gaymer. Judge Prophet, the president of employment tribunals in England and Wales, and Colin Milne, the president of the employment tribunals service in Scotland, are also members of that august body. 
 The hon. Gentleman asked what difference the Leggatt review would make. It did not warn against changes to the cost rules. Leggatt considered full cost recovery and the loser paying the winner's costs. The review is of the whole tribunal system, not just employment tribunals. We do not think that anything that emerges from Leggatt will necessitate any speedy changes to the regulations that will be produced in due course; we think that these measures stand alone. For all those reasons and others, I commend the clause to the Committee. 
 Question put and agreed to. 
 Clause 22 ordered to stand part of the Bill.

Clause 23 - Employment Appeal Tribunal

Philip Hammond: I beg to move amendment No. 25, in page 33, line 2, at end add—
'( ) After that section there is inserted— 
 ''34A Compensation for preparation time 
 Appeal Tribunal procedure rules shall include provision for authorising an Appeal Tribunal to order a party to proceedings before it to make a payment to any other party in respect of the time spent by that other party in preparing his case and shall make provision for taxing or otherwise settling the amount of payment to be made or for fixed sums to be payable by reference to criteria set out in the rules''.'.
 In Committee, the first clause of the Bill or a part of the Bill tends to be the subject of a rather lengthy debate, which I suspect is partly due to the ranging-shot principle. In debates on clause 22, we covered an awful lot of general ground that also applies to the whole of part 2. For that reason, I hope that we can make rapid progress through the remainder of this part. 
 The amendment is simple. I propose to add to the arrangements for employment appeal tribunals a provision on compensation for preparation time, mirroring, mutatis mutandis, the provisions in new section 13A in clause 22, which we have discussed. The Minister made the point that it is almost unheard of for people not to be legally represented at employment appeal tribunals, and I do not dispute that. However, he also said that the fact that a person was legally represented would not necessarily prevent them from recovering in-house preparation time costs. We had a debate earlier about the economics of using in-house support to reduce external legal bills. That would be to the ultimate good of the entire system, with the notable exception of lawyers. 
 I hope that the Minister will accept amendment No. 25 as a logical extension of the Government's framework, although I recognise that there will be fewer employment appeal tribunal cases than employment tribunal cases in which it would be appropriate.

Alan Johnson: The hon. Gentleman gets to the nub of the problem early on. Most applicants and respondents are not legally represented at employment tribunals, whereas practically everyone is at an employment appeal tribunal.
 The Government do not agree with the proposal, although we have given it a great deal of thought. When we considered the changes to clause 22, we examined whether we should introduce the measures in clause 23 as well. The reason for the different treatment is our view that provisions for costs and preparation time awards should be appropriate to the nature of the tribunal. Proceedings before the employment appeal tribunal deal largely with points of law. As such, they require less gathering and preparing of factual evidence by the parties. The situation that we described in clause 22, in which workers sit around the kitchen table and put lots of effort into preparing their case, does not apply. Most are legally represented. 
 Another major difference is that litigants in person to an employment appeal tribunal can recover their costs, as in the civil courts. We dealt with that inconsistency in clause 22. A cost regime is already in place for the employment appeal tribunals; adding compensation for preparation to that regime is unnecessary. 
 The first part of the amendment, in which ''shall'' creeps in instead of ''may'', obliges the Lord Chancellor, who is responsible for the employment appeal tribunal rules, to include the provision in the rules. The amendment does not deal with the Secretary of State but the judiciary. In the same way that we saw no reason to bind the judgment of the Secretary of State, the Government see no reason to bind the judgment of the Lord Chancellor in the matter of employment appeal tribunal rules. We take the view that such matters can be safely left to discretion. For those reasons, I hope that the hon. Gentleman will withdraw the amendment.

Philip Hammond: I have listened carefully to what the Minister said. I am pleased to hear that he has considered the argument for symmetry. The least persuasive part of his argument was that fettering the discretion of the Lord Chancellor was unthinkable. Some of us might regard even an illustrious person such as the Lord Chancellor as a mere politician rather than a haughty judicial personage. However, if the Minister has given the issue genuine consideration and reached the conclusion that it would not be appropriate, I am prepared to withdraw my amendment. Our noble friends tend to scrutinise and ponder such issues more deeply than we do, and I am sure that it will be discussed in the other place if others believe that we need to go around the loop again. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Philip Hammond: I have just a couple of questions for the Minister; we have already dealt with many of the substantive issues. Clause 23 amends section 34 of the Employment Tribunals Act 1996, which allows the award of costs or expenses if:
''(a) the proceedings were unnecessary, improper or vexatious, or
(b) there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings.''
 The replacement wording in clause 23 says merely: 
''Appeal Tribunal procedure rules may include provision for the award of costs or expenses.''
 On the face of it, the primary legislation removes the constraint on the circumstances in which costs or expenses can be awarded. What is the practical effect of that? Does the Minister intend to reimpose the limitation by secondary legislation? It is an extremely poor general principle to amend primary legislation to make it more universal and then to reimpose precisely the same restriction by secondary legislation, which can be amended by further secondary legislation. It is a retrograde step. If it is not simply that and the Minister intends that the power will operate in a different way as a result of the change to the wording in the primary legislation, can he explain precisely how it will work?

Alan Johnson: I hope that the Committee will agree clause 23. It is important. It introduces the same ability for employment appeal tribunals to make costs awards against representatives and to prevent that award being clawed back from the client.
 Let us be clear, we are not changing the basis for costs awards at the EAT. The wording is slightly different and the hon. Gentleman quoted it. It is 
''the proceedings were unnecessary, improper or vexatious, or
b) there has been unreasonable delay''.
 Unreasonable delay would obviously apply more to the employment appeal tribunal than to the employment tribunal. We are talking about someone taking a long time to decide to go to an appeal. We see no reason to change that. These circumstances, which closely mirror the employment tribunals, are set out in primary legislation. There is no need to repeat that in the clause. We now want to make provision for wasted cost. That is the purpose of the clause.

Philip Hammond: It is not clear to me where that is set out in primary legislation because the wording in section 34 of the 1996 Act is being replaced by wording that does not contain the phrase ''unnecessary, improper or vexatious''. Can the Minister tell me where in the primary legislation that limitation is placed on the power?

Alan Johnson: I wish that I could. The circumstances in which costs can be awarded in employment tribunals and in employment appeal tribunals are already similar in practice. As we are introducing new powers for both the employment tribunals and employment appeal tribunals it makes sense to set them out in legislation in a consistent way.

Philip Hammond: That is good paraphrasing. The Minister seems to be saying in a nutshell that he is taking the limitation out of the primary legislation and putting it back in secondary legislation. It is a retrograde step to depend increasingly on secondary legislation.

Alan Johnson: We seem to have a point here that I will look into. If we need to change that on Report or at some other stage, we will. I will examine the point and give the hon. Gentleman a reasoned response.
 Question put and agreed to. 
 Clause 23 ordered to stand part of the Bill.

Clause 24 - Conciliation

Philip Hammond: I beg to move amendment No. 34, in page 33, line 10, after 'such', insert 'fixed'.

David Amess: With this it will be convenient to take the following amendments: No. 26, in page 33, line 10, after 'period', insert 'not exceeding three months'.
 No. 35, in page 33, line 11, at end insert 
'or for such extension of such fixed period as the Tribunal may order'. 
No. 32, in page 33, line 23, leave out paragraph (a). 
 No. 33, in page 33, line 28, leave out paragraph (b).

Philip Hammond: The amendments seek to do several specific things. Subsection (1) allows the fixing of a time and place for a hearing to be postponed. Amendment No. 34 would insert the concept that such a postponement should be fixed. That is not to say that it should not be subject to later extension but that it should fixed when it is introduced. Employers have expressed concern—although I have no doubt that people on both sides will be concerned—that unscrupulous parties may seek to delay proceedings coming to a tribunal when there is no reason to do so. For that reason, I hope that the Minister will be persuaded by the amendments or tell us that it was always his intention for regulations to provide that a fixed period, rather than a general, indefinite postponement, should be allocated for conciliation. Any attempt to conciliate before reaching a tribunal is obviously positive, and no one would disagree with trying to encourage a conciliated settlement whenever it is possible. The amendment would ensure that postponement for conciliation does not become a mechanism for serial slippage.
 Amendment No. 26 would define the fixed period as a period ''not exceeding three months''. The Minister could provide in regulations for the appropriate period allowed for conciliation, or delegate the power to the tribunal or conciliation officer, but the period should not be longer than three months. To avoid the measure becoming a mechanism for slippage in bringing cases to tribunal, we must ensure that the initial period is relatively short. I am open-minded about whether three months is the right period, and I would like to explore with the Minister the concept of imposing a maximum delay limit. 
 Amendment No. 35 would allow for an extension of the fixed period if the tribunal orders it. We are working somewhat in the dark, because we do not know what the regulations will propose. Will the tribunal decide to postpone the hearing for conciliation—hopefully for a fixed period—or will there be a general presumption of a period of postponement? In framing the amendment, we did not know whether the decision to grant a postponement extension would return to the tribunal or whether the tribunal would be involved actively for the first time in granting a fixed and generally applied extension. Perhaps the Minister will tell us how the regulations will work. 
 To summarise, the amendments provide that the period of postponement for conciliation is fixed, short and can be extended only with reference to the tribunal. 
 Amendments Nos. 32 and 34 deal with a slightly different point. Amendment No. 32 would leave out subsection (3)(a), which gives the Minister the power to provide for exceptions to the general rule that the conciliation officer should be sent notice of tribunal proceedings. It is a probing amendment. I am not suggesting that cases should not be excepted from that general rule, but it is important that we understand what the Minister has in mind as exceptions and that he makes a case for discriminating against or in favour of—whichever way we consider it—a certain class of cases. 
 Amendment No. 33 would leave out paragraph (b). Those hon. Members who have been involved in Committee work with me in the past, of whom I count you as one, Mr. Amess, know that I am not entirely disinterested in semantics. Paragraph (b) seems to deal with a very semantic point, and I cannot understand what it is designed to achieve. The Employment Tribunals Act 1996 requires parties to be notified 
''that the services of a conciliation officer are available to them''.
 For those words, paragraph (b) substitutes 
''of the availability to them of the services of a conciliation officer''.
 I pored over that provision with my finest-toothed comb, seeking to establish the substantive difference that it will make, on which Parliament's time is being spent. However, I came to the conclusion that it will not make one iota of difference to the operation of the 1996 Act. 
 It was impressed on me early in my parliamentary career that the first principle of drafting legislation is economy. We must never do anything that does not need to be done and we should not use three words where two will do—I must admit that I do not always apply that rule to my speeches.

Rob Marris: The hon. Gentleman said that he was not disinterested in semantics. Did he mean that he was not uninterested in semantics?

Philip Hammond: I am grateful for that intervention and I look forward to serving with the hon. Gentleman on many Committees. I can see that he and I have a great deal in common and I shall go away and ponder on his point.
 To be serious, I ask myself whether I have missed something about paragraph (b). It appears to do nothing at all and therefore offends the principle of economy in legislation. If the paragraph does do something, I have not noticed what that is, and I should be grateful if the Minister would explain it to me.

Alan Johnson: I fully agree with the intentions behind the first three amendments. Incidentally, to be semantic, there is an error in amendment No. 26. I think that it should be aimed at amending line 10, not line 16.

Philip Hammond: The amendment was correct when it was tabled, but it was published with an error on the original Notice Paper. That was subsequently corrected, so the Minister must have a copy of the original one.

Alan Johnson: It serves me right for being semantic.
 The first three amendments would ensure that the conciliation period was reasonably brief and did not hold up unduly the progress of tribunal claims where a settlement was not reached and they went on to a hearing. I agree that a conciliation period longer than three months is too long and I fully intend to ensure that the normal period is shorter than that. ACAS shares that view. I agree with the hon. Gentleman that it would be sensible to set in legislation a maximum length of three months, but the proper place in which to do that is in regulations, not in the Bill. There is no disagreement on the principles. 
 I can assure the hon. Gentleman that the period for conciliation is intended to be fixed. It may be helpful if I explain how we intend that period to operate. Its purpose is to encourage parties to think seriously about whether they are willing to settle their claim and to do that thinking earlier in the process than they do now. We are plagued by last-minute settlements on the steps or at the door of employment tribunal hearings, and there is a significant waste of tribunal time and a substantial delay to other claims. Tribunal proceedings and participants will benefit greatly if two thirds of the claims that are settled or withdrawn between conciliation and the hearing are dealt with in a timely manner. There will be a fixed period, which we agree should not be longer than three months. The normal period will be much shorter; the general view of ACAS is that it should be six weeks. The hon. Gentleman is nodding. 
 During the fixed period, ACAS will approach both parties and encourage them to engage in conciliation. They are not obliged to engage in that process—conciliation is not compulsory—but it is right that they should be asked to pause for thought and that the tribunal should not normally progress their case until the period has ended. Currently, while the parties are merrily discussing the case in conciliation, they receive notice of an employment tribunal with a set date, and their minds turn inevitably to their day in court rather than to the conciliation. If the parties have not reached a settlement by the end of the fixed period, the case will be listed for a hearing. So conciliation is got out of the way before the date is set for the hearing, which is not what happens at the moment. However, if ACAS considers a settlement to be imminent, there will be provision for a limited extension to complete its work. 
 The hon. Member for Runnymede and Weybridge is right that an extension cannot be used and abused to avoid an eventual tribunal hearing. Parties may, of course, choose to settle their claim later, but at that point it will be for ACAS to choose whether to become involved. Claims may be settled through compromise agreements as an alternative to an ACAS conciliated settlement.

Philip Hammond: Will the Minister clarify whether the extension to the period will be determined, or at least rubber-stamped, by the tribunal, or whether the power to do that will be delegated to ACAS?

Alan Johnson: ACAS would need to decide whether a settlement is imminent, as it is part of the conciliation process and can give a good and independent judgment about whether an extension is likely to lead to a conciliated settlement. So the onus will be on ACAS.
 Let us deal first with the points about conciliation and fixed periods. Amendment No. 35 would provide for extensions to the fixed period. As I explained, I agree that there should be provision for carefully controlled extensions where ACAS believes that a settlement is imminent, and the provision will be in the regulations. The aim of the amendments is laudable, but they are not necessary, and I invite the hon. Gentleman to withdraw them. 
 Amendments Nos. 32 and 33 would remove two proposed amendments to section 18 of the Employment Tribunals Act 1996. Amendment No. 32 is probing. Subsection (3)(a) will allow the regulations to provide that the employment tribunal service need not send an application form to ACAS unless the respondent has completed an IT3 response form giving notice of appearance. Under section 19A of the 1996 Act, all application forms must be sent to ACAS once the tribunal service has received them. If a respondent fails to enter a notice of appearance, it seems entirely reasonable that ACAS should avoid wasting its resources on fruitlessly trying to engage in conciliation with a party who will not co-operate. So if the IT1 application has been submitted but the IT3 response form has not been received, the employment tribunal must, under current law, send the notice of appearance to the respondent. 
 That is a tidying-up amendment. On subsection (3)(b), the hon. Gentleman has provided us with a real challenge: to explain what subsection (3)(b) is for. It is supposed to reflect the following change. ACAS will have a duty to conciliate during the specified period. Outside that period, in which it currently has a duty to continue to conciliate, it will have a power to do so. ACAS can make it clear that parties should not hang about until the end of the process, and accordingly encourage them to get moving and find a solution. If the parties pass that date, ACAS has no duty to remain and can threaten to walk away. ACAS has the power to continue if it thinks the process will benefit from an extension. 
 The hon. Gentleman raised a reasonable point, which I raised earlier, about the wording. Currently, an ACAS officer has a duty to conciliate if both parties request it, or if he has a reasonable prospect of success. At the end of the fixed period, the duty to conciliate is to be converted into a power to conciliate. 
 The changes made to section 19(b) of the Employment Tribunals Act 1996 by subsection 3(b) reflect that change in the ACAS officer's duty. The regulations must provide for the notification of parties about the availability of a conciliation officer's services, rather than saying that parties must be notified that an officer is available. After that clarification, I hope that the hon. Gentleman will withdraw these two amendments and the first three.

Philip Hammond: I shall deal with the last point first, because it is crystal clear in everyone's mind. The Minister has lost me because subsection 3(b) deletes
''that the services of a conciliation officer are available to them'',
 and substitutes 
''of the availability to them of the services of a conciliation officer''.
 To me, that does nothing substantive. It certainly does not address the issue mentioned by the Minister, which is the change from duty to a power to conciliate. 
 I am unpersuaded that the provisions of subsection 3(b) do what the Minister says that they do. They seem to change the wording for the sake of it. I am not terribly upset about that, but it is a waste of everyone's time to change the grammatical construction of sentences that have no substance. The Minister may say more on that in a moment.

George Osborne: Perhaps I can help. Is it something to do with the propensity of new Labour to confuse words with substance and action?

Philip Hammond: That is the well-known gap between its rhetoric and reality. My hon. Friend could be on to a rich vein here, and if we had more time we might mine it for an hour or so. However, given the disgraceful constraints imposed by the Government on the Committee's considerations, it may be better if we move on. I recognise the Minister's argument about duty and power to conciliate. My impression was that that related to another provision.
 On amendment No. 32—I shall continue going backwards—the Minister seemed to say that the only exception he will make is in a case where the respondent has not sent the requisite form. In such cases, there is no point in mandating a conciliation period. I have no problem with that, but why is it not possible to add 
''except in cases where the respondent has not acknowledged receipt of service'',
 rather than say 
''except in such circumstances that the regulations may provide'',
 which would leave it wide open for Ministers, now or in the future, to exclude whole classes of applications from the conciliation procedure. 
 I thank the Minister for confirming that the Government intend to introduce through regulations—sub-optimal, but it gets there in the end—the substantive points at which amendments Nos. 34, 26 and 35 drive. I am slightly disappointed that the tribunal will not be involved in the granting of extensions and that that power will be wholly delegated to the Advisory, Conciliation and Arbitration Service. ACAS is an under-resourced service and will have substantial additional burdens placed on it by the Bill. I suspect that, more often than not, extensions will be granted not because of the likelihood of imminent results from conciliation, but because a lack of resources means that conciliation has not even started as the end of the initial period looms. It is no good for the Minister to bang the table and say that six weeks is the normal period and three months the maximum if there are too many cases to conciliate and too few officers to work on them. 
 I would have preferred reference to be made to the tribunal, so that there could have been a public forum in which we could see when cases were brought back for extensions of the conciliation period. That would have meant that any failure to resource properly the conciliation process would have rung a public alarm bell. We will discuss later the resourcing of ACAS and the needs that will arise. The Minister dealt with the substance of the first three amendments in the group, if not the last two. Unless he has something helpful to say—I see that he helpfully indicates that he does not—I will withdraw the amendments and invite my noble Friends to pursue the arcane language of subsection (3)(b) when the Bill reaches the other place. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 38, in page 33, line 21, at end insert—
'(2A) In section 18 of the Act (conciliation) after subsection (7) there is inserted 
 ''(7A) Notwithstanding the provisions of subsection (7) above, where the conciliation officer believes that any party to a conciliation procedure has behaved in a manner which ought to be conveyed to the Tribunal, he may make a report in writing of such matter to the Tribunal and the Tribunal shall take account of any such reported behaviour in making any order under section 13 above.''.'.
 This is a much more substantive point, and we have already touched on the arguments earlier this afternoon. The amendment would insert a new subsection after section 18(7) of the Employment Tribunals Act 1996. Subsection (7) specifies that anything communicated to a conciliation officer must remain confidential unless the person who communicated it allows its release. Clause 24 introduces conciliation as a critical part of the procedure that deals with cases that can come to a tribunal. The Minister is sticking to the use of vexatious, unreasonable and so on as the qualifying definition for cases in which costs or preparation time compensation might be awarded. It is self-evident that a party's approach to the conciliation procedure should also be a major factor in reaching an informed decision about whether that party has behaved reasonably. 
 The Minister is rightly introducing a requirement to go into a period of conciliation. Let us consider a situation in which a party enters that conciliation process with the clear view that it is engaged in only a pro forma exercise. It shows no intention of negotiating or listening to the conciliation officer, and ignores any advice to either party that the case is unsustainable and the parties should reach a compromise. The party demands his day in the tribunal. Such conduct should be taken into account by the tribunal in determining whether it is reasonable to award costs, because it is vexatious and unreasonable within the overall process that the Minister describes. 
 The conciliation officer should report routinely to the tribunal on the conciliation procedure, or at his discretion, if he believes that the tribunal should take account of the conduct of either party in reaching its decision. However, as the law stands at present, he is constrained from making the conduct of the parties known to the tribunal because of the effect of section 18(7) of the Employment Tribunals Act 1996. 
 The Minister is committed to the principle of confidentiality; he thinks that the ability that parties have to speak in confidence to a conciliation officer will help in achieving a conciliated settlement. The argument is persuasive for the substance of what is said. People are tempted to divulge information to the conciliation officer that they would not want repeated in the open tribunal. However, I do not see why that should prevent the conciliation officer from reporting to the tribunal the fact that one party or the other had been obstructive or had approached the conciliation process with no intention of genuinely participating in the attempt to reach a settlement. Given the Minister's overall agenda, it is essential that he address the point. It must be made clear to both parties that, if they do not seriously engage in the conciliation process, their conduct—or misconduct—may count against them when the tribunal considers whether costs or expenses should be awarded.

Alan Johnson: We discussed that fundamental point this morning. The amendment could have serious consequences that the hon. Gentleman does not intend. It would undermine rather than enhance conciliation. The hon. Gentleman suggests that the conciliation officer should make an assessment of the merits of a tribunal application. More importantly, he suggests that if such an assessment showed that the case had no reasonable prospect of success, the conciliation officer should communicate that to the relevant party and to the employment tribunal, so that the tribunal could take it into consideration when deciding if it wished to make a cost award.
 The hon. Gentleman's suggestion has the potential to undermine ACAS seriously and considerably. He said that he accepts that ACAS could play an important role; the point is that ACAS does play an important role. It accounts for settlements in 38 per cent. of employment tribunal claims, and it has an enormous effect on the 37 per cent. of cases that are withdrawn. Put simply, if ACAS conciliators were involved in assessing a case and reporting its findings to the tribunal, key features of conciliation—not just confidentiality but impartiality—would be severely undermined. 
 Conciliation officers can and do discuss the merits of the case with the parties. They outline its strengths and weaknesses and play devil's advocate. That is an important part of their role and is key to ensuring that the applicants and respondents consider the merits of their case. It is safe to assume that both parties consider such comments when deciding to settle or withdraw the case. They have listened to the conciliation officer going through the confidential, impartial process, which is a crucial part of conciliation.

Philip Hammond: The Minister describes a case in which both the applicant and the respondent behave reasonably. They listen to the conciliation officer and what he says informs their decisions about how to behave. However, the hon. Gentleman did not address the situation that I had in mind when drafting the amendment, that of an unreasonable applicant or respondent who does not listen or genuinely engage in the conciliation process. How would the Minister deal with someone whose conduct showed that he had no genuine intention to seek a settlement?

Alan Johnson: I have spoken to the conciliators, who do a skilled job. Many applicants or respondents who enter the conciliation process with the frame of mind that the hon. Gentleman describes—he is right to say that some are completely unreasonable and it wastes everyone's time—end up being persuaded to accept a conciliated settlement. If they do not, the conciliators would have to say, ''If you put us in a position where we are part of the judicial process, albeit on the grounds of behaviour, we will have to make a report to the tribunal.'' They should not become part of the judicial process as that would weaken and question their impartiality. That is an important change in their role. People who do the job believe that it would have a profoundly damaging effect. I agree with ACAS that impartiality and confidentiality are crucial to its enormous success; about 75 per cent. of cases are withdrawn or conciliated.
 The proposal would have an adverse impact on the behaviour of the parties involved; if a potential outcome of conciliation could be a report to the tribunal it would undermine open and honest discussion, which is the key to settling cases. 
 For those reasons, I ask the hon. Gentleman to withdraw the amendment. I sympathise with any attempt to promote conciliation but I am anxious that in attempting to deal with a particular problem, the amendment runs the risk of creating a new set of problems. As we need ACAS to take an even more important role, it would simply undermine that process. If the hon. Gentleman does not ask leave to withdraw the amendment, the Committee should oppose it.

Rob Marris: In terms of confidentiality, the cure proposed by the amendment is worse than the disease. The word ''behaved'' reminds me of an episode of ''Not the Nine O'Clock News'' in which someone was nicked by a police officer for smiling aggressively, which I thought was quite funny until a couple of years ago, when that happened to someone in south London.
 ''Behaved'' is a loaded word and ACAS officers are not psychiatrists. Faced with the proposed subsection, if I were still practising law and acting for an applicant, I would advise my client to have nothing to do with ACAS and take the right to silence, because all that ACAS officer could do in that case would be to say, ''I am going to write to the tribunal saying that you behaved badly because you wouldn't talk to me.'' That would be fine; I would tell my client to go right ahead, because the alternative would be that my client might speak to ACAS and, as it were, hang himself. He would have a bad mark against him at the tribunal from the ACAS officer's report. As a non-practising solicitor, Mr. Amess, you might expect me to say it, but confidentiality is absolutely crucial to the negotiations and conciliations and the amendment would dilute it in an unhelpful way.

Philip Hammond: I do not agree with the argument advanced by the Minister or by the hon. Member for Wolverhampton, South-West. We must distinguish between confidentiality in substance and it being able to cloak procedure and one's approach to the procedure. The hon. Gentleman does not like the word ''behave'' and I accept that the drafting of the amendment is not perfect. Clause 22 uses the phrase ''conduct of the proceedings'', so I think that a conciliation officer could report that one or both parties had conducted themselves in a way that was not conducive to serious attempts at conciliation.
 I raise the issue—this builds on what we discussed in the last few debates—because there is a provision for the award of costs, which is an important safeguard for respondents. By definition, respondents do not initiate action; they are forced to defend themselves against an action initiated by someone else. The provision enabling respondents to recover costs in an unreasonable or vexatious tribunal case against which they have had to defend themselves is an important part of creating an equitable system. 
 With the introduction of conciliation to the process, the definition of unreasonableness should include what happens in the conciliation part of the process. After all, we are talking about an application and then a postponement for a fixed period for conciliation to take place. The conciliation period is within the overall time frame of the tribunal proceedings, so it would be fair and reasonable to consider it as part of those proceedings when it comes to the question of a party's unreasonable or vexatious conduct. 
 The Minister is making a bit of a mountain out of a molehill in saying that my proposal would fundamentally undermine the conciliation process. I am not suggesting that the substance of the case or the details of what happened previously that are explained to the conciliation officer should be relayed to the tribunal. To ensure equity in the tribunal's decision about awarding costs, I am suggesting merely that the officer should have the power, when he feels it necessary, to convey to the tribunal a succinct phrase relating to the conduct of one or both parties during the conciliation phase. I am disappointed that the Minister does not accept my argument.

Rob Marris: Has the hon. Gentleman considered whether clause 28, on pre-hearing reviews, deals with some of his points? Let us suppose that a respondent telephones ACAS to ask what is going on with a case, but the officer there says, ''I'm sorry, but I can't do anything. The applicant's not prepared to talk and says he'll see you in court.'' In those circumstances, the respondent could apply for a pre-hearing review, at which he could say, ''When I contacted ACAS, I was told that the applicant was not interested in talking at all. That is totally unreasonable, and this application should be kicked into touch.''

Philip Hammond: We shall discuss clause 28 in a moment. I am not sure whether such a case could be subject to a pre-hearing review, given that the respondent would be unlikely to agree to it, because by definition he was not playing ball. We shall explore how those reviews will work when we reach that clause. To ensure that we get there, we had better not prolong debate any further on this clause.
 As I said, I am disappointed. The amendment was a genuine attempt to explore whether there was a need to consider behaviour during the conciliation period as well as in the tribunal forum. The Minister has not made a convincing case why it is not needed. Because of the pressure of time, I shall withdraw the amendment, but he has not satisfied me on this point. He has the drop on me in that I have not talked to ACAS about the proposal, but I intend to do so before Report. If it is appropriate, I shall raise the matter again at that stage. 
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 36, in page 33, line 35, at end add
'', and 
 (d) after paragraph (c) add— 
 '(d) provisions securing that the parties to proceedings have timely access to all documents necessary to facilitate conciliation'.''
 Amendment No. 36 would allow for something akin to discovery at the conciliation stage. A briefing from the Legal Action Group makes the following good point. 
''A fixed period for conciliation is inappropriate unless tribunals manage cases so as to ensure that early disclosure of evidence takes place.''
 It would be inappropriate to put 
''pressure on parties to settle without full knowledge of the facts of the case'',
 as it is ''not conducive to justice.'' 
 I am not a lawyer so I may have phrased my amendment imperfectly. People who understand better how the discovery process works in tribunal cases could make a better stab at it. 
 I want to probe the Minister on the extent to which he intends parties to reveal their cases at the conciliation stage. Common sense tells me that the more that is revealed of a case, the more likely will be a conciliated settlement. However, it may be wrong to reveal a case too soon if it is to be tested in a tribunal. People should not be put into a dark room to conduct the conciliation process, only to become aware of the full details of the other party's case when—having failed to reach a settlement—they emerge into the blazing light. Will the Minister explain how he will ensure that that does not occur?

Alan Johnson: The hon. Gentleman proposes that parties should receive relevant documents in good time to help effective conciliation, which goes to the heart of voluntarily conciliation. Currently, the secretary of the Office of Employment Tribunals ensures that copies of applications and notices of appearances are sent to the person making a claim, the person responding and an ACAS conciliation officer. A party who requires further details may request them from the other party. If those are not forthcoming, a party can approach the tribunal, which can order that the information is provided.
 Extra information gathered in the way suggested by the amendment could be useful to parties considering a conciliated settlement. However, a mandatory requirement does not sit well in a voluntary process.

Philip Hammond: I accept what the Minister says. Should that process occur before the conciliation period, or afterwards? Common sense tells me that it would be helpful if it happened at the beginning.

Alan Johnson: The hon. Gentleman is right: it would be helpful. We are not suggesting compulsory conciliation, and neither are Opposition Members. That would be a mistake and we have heard many arguments against it. We did not make it a proposal, but it was covered in ''Routes to Resolution''.
 We must encourage people to engage in voluntary conciliation. The amendment could result in parties concentrating on the legalistic process of obtaining information via the tribunal rather than reaching a settlement. Our proposals do not prevent parties from seeking further information voluntarily or through the tribunal. Our proposals on mandatory application forms and responses could go a long way to achieving the aim of the amendment. We expect that by prescribing the information that is required, we will gather much of the information that the amendment seeks to make available to the parties. That will complement the role that ACAS conciliation officers currently perform to clarify the issues for parties as they consider reaching a settlement.

Philip Hammond: If I understand the Minister, nothing would prevent either party from approaching the tribunal at any time during the process to seek the tribunal's order to the other party to disclose information. That would effectively secure that timely access to documents that the tribunal believes necessary for the conciliation process. If the Minister will confirm that, I will be delighted to withdraw the amendment.

Alan Johnson: I can confirm that.

Philip Hammond: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 37, in page 33, line 35, at end add—
'(4) The Secretary of State shall within 90 days of this section coming into force, prepare and publish an assessment of the additional resources required by the Advisory, Conciliation and Arbitration Service to facilitate the conciliation process as provided for in this section'.
 External bodies on both sides of industry have expressed concern about the resources available to ACAS. The regulations will give ACAS a greatly increased role. Conciliation is a laudable objective, but we all agree that there must be a time limit. The worst scenario is that we write into legislation a requirement for a conciliation period. That would, in effect, be tokenism, and one can imagine someone from ACAS talking to someone on the telephone for five minutes, because that is all that the available resources will allow. It is generally agreed that ACAS services are stretched, even though the number of days lost through disputes might lead us to believe that demand is low. 
 I am concerned that the Government are, if not imposing, greatly encouraging the use of conciliation by writing it into the statutory procedure, without giving ACAS adequate resources to provide the service necessary if conciliation is to work. The amendment would place on the Secretary of State a duty to assess the requirements of ACAS in the light of the new legislation and to publish the results of that assessment. That would put the Minister on the spot to provide the resources to make effective the system that he and his Government have invented. 
 If the issue is not addressed, conciliation could easily become an empty box—a delaying process—in the tribunal system, and would not have a fair chance of working and demonstrating its ability to reduce the number of cases that reach tribunals, simply because there are no conciliation officers. All hon. Members will have come across child protection cases in their constituencies in which a social worker was assigned to a child who had never seen them before or who last saw them two or three years before. 
 The bureaucratic process of providing resources and input is not the same as the mechanism of delivering adequate resources to ensure that the opportunity that the legislation seeks to provide is properly exploited by all parties to maximum effect. The amendment would ensure that the Minister had to make a public assessment of what was really needed.

Alan Johnson: There is very little between the hon. Gentleman and me. I hope that he will withdraw his amendment, but it is important to say a few words about ACAS. We have made proposals for changes to conciliation in full consultation with ACAS. The hon. Gentleman is right that there are resource implications. They would be the subject of ongoing discussions between my Department and ACAS. In addition to those usual channels, we have set up the employment tribunal system taskforce to look at the employment tribunal system as a whole, which obviously includes ACAS conciliation. The Government also said that
''the Taskforce may wish to consider the operational aspects of implementing proposals set out in the 'Routes to Resolution' consultation paper''
 which go beyond the scope of the clause. 
 The proposals include the introduction of the minimum dispute resolution procedures, which the Committee will soon debate and which are predicted to have a considerable impact on ACAS's case load. ACAS also plans to step up its advisory role, such as the seminars that it runs for small businesses. There is a real sea change at ACAS. It now has a chief executive as well as a chair and is moving into new areas with great enthusiasm under Rita Donaghy's expert chairmanship. Significant extra resources have been found for the employment tribunal service and ACAS. The ETS's allocation has just been increased by more than £2 million this year, by £7.5 million next year and £10 million the year after. We also plan to provide ACAS with significant extra resources to cope with case load increases and the cost of introducing new pay systems. 
 ACAS already puts considerable effort into conciliating cases, but there is no fixed period for conciliation. It can drift on for long periods. A fixed period of conciliation would give ACAS less choice of when to deploy its resources, but it should allow ACAS greater scope to plan the use of those resources. The Government do not accept that extra resources will necessarily be needed. The operational detail of the proposals will need to be fully worked out before their impact on resources can be assessed. 
 Requiring the Secretary of State to prepare and publish an assessment of the additional resources required by ACAS, as the amendment seeks to do, is not likely to be helpful. I have explained that this is one of a number of proposals impacting on ACAS. We hope to use the fixed period of conciliation to change the behaviour of parties to employment tribunal claims. The extent to which that aim has been successful is unlikely to be clear within 90 days of the law coming into force. I hope on that basis that the hon. Gentleman will withdraw the amendment, which is unnecessary. Its aims are laudable but they would not be achieved. Many of the points that have been made about ACAS are entirely relevant, and we will address them in the course of putting this Bill into effect.

Philip Hammond: I hoped that some Labour Members might have said something about this matter. It might have been those who are not here today.

Ian Pearson: It is a stupid amendment.

Philip Hammond: Perhaps when the hon. Gentleman is a Minister he will be in a position to say that it was a stupid amendment, but the Minister did not say that. It may be that 90 days is not the right period, but the Minister seems to recognise that there are resource implications. However, it is unlikely to be helpful for the Secretary of State to have to identify them as the resource requirement identified will doubtless be substantially in excess of the resource available. It is likely to be very unhelpful because it will mean that Ministers will have egg on their faces.
 In general it is good to have assessments of the resources required as a result of legislation made public so that people can see whether the resources have followed the rhetoric of the legislation and that there is something there to back up the legislation in practice. I take the Minister's point about 90 days. Perhaps a more sensible suggestion would have been six or 12 months. 
 However, the Minister will not concede anything, other than acknowledging that more resources may be needed, and he does not even admit that that is necessarily the case. Essentially, the matter will be dealt with at Ministers' discretion behind closed doors, which is not what I would have liked. Given the time, I will withdraw the amendment and see if the issue can be tackled in another way at a later stage. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 24 ordered to stand part of the Bill.

Clause 25 - Power to delegate prescription of forms etc.

Philip Hammond: I beg to move amendment No. 39, in page 33, line 43, at end insert—
''(aa) authorise the Secretary of State to prescribe forms in electronic format for the purposes stated in paragraph (a) above.''.
 We are making startling progress, as we hurtle towards the end of part 2. Amendment No. 39 simply seeks to include in the Bill a provision that the prescribed forms may be in electronic format if the Secretary of State so determines. It is part of a modernising agenda, and I hope that the Minister will have no difficulty in agreeing to it.

Alan Johnson: There is very little between the hon. Gentleman and me. The notice of appearance form will be sent to the respondent when he is notified of proceedings against him. It will be available in electronic form, as will the IT1. Existing powers in the Employment Tribunals Act 1996 allow electronic forms to be made available. Clause 25 also provides that the employment tribunal procedure regulations may
''make provision about the publication of anything prescribed''
 as a result of the clause. I hope that, as a result of those comments, the hon. Gentleman will withdraw his amendment, which is superfluous to requirements.

Philip Hammond: I am not sure whether the Minister said that the regulations would provide for the use of forms in electronic format.
Alan Johnson indicated assent.

Philip Hammond: The Minister confirms that that is what he said. I beg to ask leave to withdraw the amendment
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Philip Hammond: Several organisations have raised the issue of formalisation of tribunal proceedings. There is tension between the natural tendency to define in legislation how procedures are to be carried out and the general thrust of the Leggatt review that we should try to resist the tendency of tribunals to become more like courts and, thus, a source of substantial income for lawyers and substantial costs for the rest of us. What does the Minister think about the charge that creating prescriptive formats for forms, as the Bill does, is part of the process, which he rightly seeks to resist, of making tribunals more formal, more like courts and more difficult to navigate for those who are not represented?

Alan Johnson: That is an important point, but I do not accept the argument. Leggatt did not comment on forms. He recommended efficient administrative processes, making full use of information technology. The standard IT1 and IT3 forms—we should call them ET1 and ET3—are used in the vast majority of cases. That is important for several reasons. First, people should not submit forms on the back of a fag packet, so to speak. Secondly, we are introducing elsewhere in the Bill the requirement to have a grievance and discipline procedure in the workplace, and it is important to know that those procedures have been used when an application is made.
 Some concern was expressed, particularly by Labour Members, about people who might have problems with the language and feel uncomfortable about the issues. We are determined to design the form with those fears in mind and envisage a tick-box procedure. The new system will give us the opportunity to ensure that the employee's basic written statement is attached to the form. At the moment, it is difficult to get standard and basic information, such as the employee's terms and conditions, in the open. It can take a long time, as the employment tribunal must ask for forms that are crucial to the case. The clause allows us to have that information right from the start, as it provides for the Secretary of State to determine what attachments should be made to the forms. That change is not a retrograde move, but a step forward. In fact, I believe that it will meet the concerns that Leggatt expressed in entirely different respect and make the employment tribunal service run much more smoothly.

Rob Marris: I share some concerns about the clause and hope that the Minister can reassure me on the time limits that applicants face. That applies to respondents, but with less drastic results than those for an applicant who misses the three-month limit to submit an IT1 or, currently, to apply to the tribunal in another format. In trying to square that circle, or cut the Gordian knot, will the Minister assure me that regulations might be able to preserve the position of the applicant who does not initially use an IT form and puts in the application on the last day—as all too frequently happens? That applicant's position should not be prejudiced simply by having sent a letter to the tribunal on the last day and, under the regulations, the tribunal could ask the applicant to complete the tick-box IT1 form. Some applicants, particularly those who have difficulty with writing and legalese, might have trouble getting hold of the forms. If the Minister assured the Committee that the regulations could provide for such a two-stage process, it would be helpful and might address some of the concerns of the hon. Member for Runnymede and Weybridge.

Alan Johnson: My hon. Friend raises an important point. There is obviously a transition period as we move from the old system to the new. We should be as user-friendly as possible, particularly for people who must get used to the changing arrangements. We will address that in the regulations. I should emphasise that we will make enormous efforts to ensure that the forms are as widely available as possible. They will be available from the employment tribunal service, job centres—or whatever their fancy new name is from April—and advice and law centres. They must be ubiquitous so that people have easy access to them. My hon. Friend the Member for Wolverhampton, South-West raised an important point, and we will address it when forming the regulations.
 Question put and agreed to. 
 Clause 25 ordered to stand part of the Bill.

Clause 26 - Determination without a hearing

Philip Hammond: I beg to move amendment No. 40, in page 34, line 7, after 'hearing', insert
'where both parties agree to such a determination'.
 The amendment would provide that determination without a hearing can take place only if both parties agree. There is no substantial difference. The explanatory notes say that the Government have that circumstance in mind for allowing determination without a hearing and, perhaps more tellingly, the Trades Union Congress brief also states that categorically. 
 The clause as drafted is too wide. Henry VIII would be turning in his grave, because it provides for the Government to determine, by means of regulations, that any proceedings can be dispatched without a hearing in circumstances that the regulations may prescribe. I am stretching the point, but there is nothing to stop the Government from drafting those regulations to prescribe circumstances so wide and all-encompassing that they virtually do away with tribunals. I am sure that is not the Government's purpose, but as a matter of principle, if there are narrow circumstances in which the normal procedure will be done away with, it would be appropriate to include those circumstances in the Bill. 
 Clause 26 would write that into the 1996 Act by saying that tribunals may authorise determination without a hearing in circumstances where both the parties agree. That is the substance of the Government's position; why do they not include it in primary legislation to ensure that a Government now, or in the future, cannot remove classes of proceedings by defining new circumstances in which they could be dispatched, perhaps without the agreement of both parties and without a hearing?

Rob Marris: I rise to oppose the amendment. I see where the hon. Gentleman is coming from but the difficulty is that the proposal would tie in a situation in which an applicant or a respondent did a runner. The hon. Gentleman's fear is that the Government could arrogate too much power to themselves in regulations; the Human Rights Act 1998 can guard against that, but applicants and respondents can disappear and the tribunal would need the agreement of both parties.

Philip Hammond: The hon. Gentleman makes an excellent point and raises a circumstance that I had not envisaged. However, he does not address the substance of my argument that the Government made it clear in the explanatory notes that the regulations will, in practice, prescribe as the sole circumstance a situation in which both parties agree. The regulations that the Government have mind would not deal with a case in which one party had done a runner. That would have to be dealt with under section 28 of the pre-hearing review.

Rob Marris: I leave it to the Minister to explain that.

Alan Johnson: I disagree with the hon. Member for Runnymede and Weybridge. I knew that Henry VIII was bound to make an appearance in our proceedings.
 For the excellent reasons given by my hon. Friend the Member for Wolverhampton, South-West, the measures are more appropriate for regulation than the Bill. The hon. Member for Runnymede and Weybridge wants the Bill to include a requirement that both parties agree before the dispute may be determined without a hearing, and I shall explain what the Government intend to do. 
 We intend that written consent will have to be received from both parties before a determination without a hearing can go ahead. The detail of the circumstances is more appropriately set out in regulations than in primary legislation. One of the requirements will be that the parties both agree, although that should not be permitted where a party subsequently seeks to withdraw consent for purely technical reasons. However, the regulations will further provide that any such consent should be informed; parties will have to seek advice on the consequences of consenting and regulations will specify those who may provide such advice, such as ACAS officers and independent advisers who may advise on compromise agreements. 
 An additional requirement will be that the tribunal itself agrees that the case is suitable for determination without a hearing, but it may not. The tribunal may decide that it is in the public interest for it to override the parties' consent if it considers that it needs to hear the parties before it is able to reach a decision or if the case raises issues of such public importance that there should be a hearing in public. The only exception to the requirement for both parties to give written consent will be where a case is uncontested. In such cases, the respondent will not have to consent to a written determination without a hearing if they have failed to take advantage of the opportunity to defend the case and have ''done a runner'', to use my hon. Friend's charming Wolverhampton phrase. 
 The Government resist the amendment, and I ask the hon. Gentleman to withdraw it.

Philip Hammond: I am fascinated that in all the Minister's long and varied experience, he has not come across the expression ''done a runner'' anywhere in the country except Wolverhampton.

Mark Prisk: He has led a sheltered life.

Philip Hammond: Indeed.

Alan Johnson: I have been in this Room.

Philip Hammond: The Minister says that he has been in this Room, but as he will have observed today, one picks up all sorts of useful expressions when stuck in this Room for a day or two.
 What the Minister said was interesting. It is a pity that he did not put it in the explanatory notes, which on clause 36 clearly state: 
''It is intended that the circumstances in which a case may be determined in this way would be where both parties have given their consent, by signing a form waiving their rights to an oral public hearing, following independent advice.''
 The Minister has conveyed a new piece of information by telling us that there is another set of circumstances. I am not suggesting that that is the thin end of the wedge and that it could lead to the abolition of all tribunals, but the Minister must recognise the logic that the proposal gives the Government total discretion. If the Minister has slightly broadened the finely defined scope of the circumstances that will be defined in regulations, my amendment will have achieved its aim. 
 I am glad that I tabled the amendment because, without it, I would not have discovered that the Minister intended to address the point raised by the hon. Member for Wolverhampton, South-West about the situation in which the applicant or the respondent has, in the phrase that will become synonymous with the Bill, ''done a runner''. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 26 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Pearson.] 
 Adjourned accordingly at three minutes to Seven o'clock till Thursday 13 December at half-past Nine o'clock.